June 2006

Ads a major cause of board complaints

by Timothy J. Feuling

Chances are, you advertise. Nearly every doctor of chiropractic does. Whether you have a small display box in the Yellow Pages or run large ads in the local newspaper, your advertising can be an important way to market your practice.

It can also get you into a lot of trouble with your state board if you aren't extremely careful.

According to almost every board of chiropractic examiners in the country, advertising is one of the top causes for complaints and investigations. A study of complaints filed with the Texas Board of Chiropractic Examiners during a three‑year period showed that advertising was the third most common type of complaint, topped only by fee complaints and the vague "unprofessional conduct" category.

Penalties for advertising violations can range from a warning letter to revocation of your license. Plus, since board complaints can cost you as much, or more, than a malpractice lawsuit, it's vital to pay close attention to advertising content and placement in order to comply with state laws.

It's also important to realize that your ads can be introduced as evidence in a malpractice case and used by a plaintiff's attorney to show that you "promised" results or that you misled the patient.

There are several reasons that advertising is a particularly risky endeavor. One is that the laws can be complex, convoluted, vague, confusing and even arbitrary. The laws are often open to interpretation by board members who may have their own professional agendas or biases, as well as personal or professional animosities. To compound matters, they differ greatly from state to state.

Some laws are highly general. For instance, the Alabama statutes states: "Any chiropractor who disseminates or causes to be disseminated or allows to be disseminated any advertising which is in any way false, misleading, or which has the capacity or tendency to deceive, or mislead the recipient in any manner, shall be deemed to be in violation..."

Others are very specific, such as the Kentucky law that mandates: "An advertisement must include the business name and address, chiropractor's name, telephone number, expiration date if any, and suitable words or letters designating the particular doctor degree held by the chiropractor. 'D.C.' shall designate a doctor of chiropractic. Any deviation from this requirement must first be approved by the board."

The first step, then, is to get a copy of your state's latest regulations concerning ads. These are usually available online at your board's website (to find your state board's website, you can visit www.fclb.org and click on "Member Boards" for a list of online addresses). Make sure you have the most recently updated regulations because they change frequently. In Texas, for instance, the law was changed in regard to the use of the term "physician," or "chiropractic physician." Unfortunately, the change went into effect after many DCs had submitted ‑‑ and paid for ‑‑ their Yellow Pages ad.

The second reason advertising is so hazardous is that the interpretation of the laws can be very subjective. Most ads have an admonition against any language that can be construed as making "unsubstantiated claims" about chiropractic care.

The New York Board noted that it has seen "an increase in the use of advertisements that employ false or misleading statements that may deceive or defraud the public. These advertisements typically make unverifiable claims or cite studies from unreliable sources."

The problem with these laws is the issue of who gets to decide what's "misleading," which claims are "unverifiable" and which sources are "unreliable."

If you state in your ads that you can reduce back pain in adults, you're probably on safe ground since there is ample evidence to support that claim. But if you state that you can cure asthma, you're on thin ice and will probably be called up before your board to "prove" that claim.

In between the two extremes is a huge grey area that includes certain statements used by subluxation‑centered chiropractors. Many ads drawing complaints discuss the benefits of subluxation correction. Normally, while they don't make direct claims about the power of chiropractic to "cure" or "treat" disease, they contain information on how vertebral subluxations can affect the nervous system and therefore compromise health. By correcting these subluxations, many ads state, chiropractic allows the body to achieve a higher state of wellness. The ads may also include statements noting that patients have reported improvement regarding various health issues.

There are doctors who don't think the vertebral subluxation itself is a verifiable entity. Some of them serve on state boards. You can imagine how they view an ad that talks about subluxation correction's ability potential to tap into one's "innate intelligence."

Ironically, very few complaints about ads are lodged by the general public. Most come from other chiropractors or from anti‑chiropractic factions. Personal enmity or professional disagreements can spur DCs to file complaints against their colleagues and competitors.

A  Texas Board staff member, for example, reported that two chiropractors were taking turns filing complaints about each other's advertising. In most cases, the Board stated, the complaints are not substantive, or even legitimate.

In order to navigate the dangerous waters of advertising:

1) Examine all your ad copy very carefully, looking at every statement the way your critics would. Can you substantiate any claims you make? Are you using the language prescribed in your state laws? Is there anything that could possibly be misconstrued as "false" or misleading? Do you imply that you can "cure" anything or guarantee results?

2) Put together a file with documents that can be used to substantiate any statements you make, including even fundamental ones such as on the existence of subluxations or the use of chiropractic for wellness care. Many of these documents, including position papers, can be found on the World Chiropractic Alliance website. The WCA's Council on Chiropractic Advocacy (www.worldchiropracticalliance.org/councils/advocacy.htm) contains resources categorized by issues such as the scientific validation of vertebral subluxation, the role of chiropractic in wellness care, subluxation correction for asymptomatic patients, etc. Download and save or print these documents so you will have them readily available if you are called to substantiate any statements made in your ads.

3) Familiarize yourself with the Council on Chiropractic Practice guidelines and keep a file of documents relating to the validity and recognition of these guidelines. These documents can be used to validate many subluxation‑based contentions and to establish that the CCP guidelines are a "reliable" source. (A copy of the CCP guidelines and information about the CCP is available at www.ccp‑guidelines.org)

4) Maintain a file of research papers relating to chiropractic issues. An excellent source of articles for the subluxation‑centered DC is the Journal of Vertebral Subluxation Research (www.jvsr.com).

5) Make sure your malpractice insurance policy covers defense of board complaints. If you are called to defend yourself, you should be represented by counsel. Without proper insurance, this can be expensive. Chiropractic Benefit Services includes $30,000 coverage for professional board dispute defense but most other policies have no coverage.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and a member of the Board of Directors of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Mr. Feuling is also available for speaking engagements at state conventions and other chiropractic events. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800‑883‑0412 or by e‑mail: feuling@cbsmalpractice.com).